Smell of raw cannabis allows police to search vehicle, Illinois Supreme Court rules

SPRINGFIELD, Ill. — The smell of raw cannabis in a vehicle gives police probable cause to search it, the Illinois Supreme Court ruled last week.

The move comes months after the court ruled that the smell of burning cannabis does not give police probable cause to search a vehicle, drawing a fine line for motorists and police to follow when evaluating of legal possession of cannabis.

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“The odor of burnt cannabis suggests past or current cannabis use, and the odor of raw cannabis suggests that cannabis is currently possessed in the area where the odor is detected. Different laws are implied based on these inferences ” said Justice P. Scott Neville, a Democrat, wrote in the majority opinion.

The court’s 4-2 decision, with Republican Justice Lisa Holder White abstaining, found that an Illinois State Police trooper conducted a lawful search of a car in which Vincent Molina was a passenger in December 2020, after the driver was stopped for speeding. on Interstate 88 in Whiteside County.

According to court documents, the officer said he smelled raw cannabis in the vehicle and initiated a search. The officer then found several joints in a cardboard box in the center console of the car and cannabis in a sealed plastic container in the glove compartment. Molina was charged with a misdemeanor for illegal possession of cannabis.

A circuit court initially ruled in favor of Molina, finding that the search was unreasonable because Illinois law allows people over the age of 21 to possess cannabis for recreational purposes. But an appeals court and the Illinois Supreme Court rejected that decision, citing state laws on how cannabis should be legally possessed in a vehicle.

Illinois law requires cannabis to be in a “sealed, odorless, child-resistant cannabis container” when in a car and to be “reasonably inaccessible while the vehicle is in motion.” .

Neville wrote that the officer made a “reasonable inference” that the smell meant the cannabis was illegally possessed.

“Although possession of cannabis is generally legal, it is illegal to possess it in a vehicle on an Illinois highway except in an odor-proof container,” Neville wrote. “The odor of raw cannabis strongly suggests that cannabis is not possessed within the parameters of Illinois law. And, unlike the odor of burning cannabis, the odor of raw cannabis coming from a vehicle reliably indicates when, where and how cannabis is in possession – i.e. currently in the vehicle, not in an odor-proof container.

The Illinois Supreme Court ruled unanimously in September, with White abstaining, that the odor of burning cannabis does not indicate that a crime has been committed and does not give police probable cause to search a vehicle. Although a state trooper found a gram of cannabis in the car at the center of this case, the driver showed no signs of impairment and the trooper should not have searched the vehicle, the court concluded. court in an opinion written by Neville.

Justice Mary Kay O’Brien wrote a dissenting opinion in Molina’s case, which was joined by Chief Justice Mary Jane Theis.

“It makes no sense to consider raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, while the odor of raw cannabis does not suggest use,” O’Brien wrote. “If the crime suggested by the odor of burnt cannabis is not sufficient as a probable cause, then the crime suggested by the odor of raw cannabis certainly cannot be either.”

O’Brien, a former state lawmaker, emphasized that it is legal to possess certain amounts of cannabis in Illinois.

“The result, whether intentional or not, is to continue to stigmatize cannabis use despite legislative efforts to legalize cannabis use,” she wrote.

Other state supreme courts have also issued rulings limiting cases in which the odor of cannabis gives police probable cause to search a vehicle.

Illinois lawmakers also sought to enshrine limitations on vehicle searches based on the odor of cannabis into state law. The Senate passed a bill in 2023 that would prohibit police from searching a vehicle because of the odor of burnt or raw cannabis, but it was stalled in the House pending resolution of court cases.

Capitol News Illinois is a nonpartisan, nonprofit news service covering state government. It is distributed to hundreds of print and broadcast media outlets across the state. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, with major contributions from the Illinois Broadcasters Foundation and the Southern Illinois Editorial Association.